Pardo #327640 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Brian John Pardo,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-23-02507-PHX-MTL
ORDER
Before the Court is Petitioner Brian John Pardo’s Petition for Writ of Habeas
Corpus. (Doc. 1.) Magistrate Judge James F. Metcalf issued a Report and Recommendation
(“R&R”), recommending that each claim in the Petition be denied. (Doc. 78 at 45.) The
R&R also recommends that a certificate of appealability not be issued. (Id.) Petitioner
timely filed objections to the R&R. (Doc. 85.) Respondent filed a response to Petitioner’s
objections. (Doc. 86.)
I.
The R&R recounts the factual and procedural history of this case, including the
underlying state court proceedings. (Doc. 78 at 1-11.) Petitioner does not object to the
R&R’s description of the factual and procedural history in this case. (Doc. 85.) The Court
accepts and adopts the R&R’s factual and procedural description. United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
II.
In reviewing an R&R, this Court “may accept, reject, or modify, in whole or in part,
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the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
But district courts are not required to conduct “any review at all . . . of any issue that is not
the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). “[T]he district judge
must review the magistrate judge’s findings and recommendations de novo if objection is
made, but not otherwise.” Reyna-Tapia, 328 F.3d at 1121 (emphasis in original). This de
novo 	review 	requirement 	applies 	to 	“the 	portions 	of 	the 	[Magistrate 	Judge’s]
recommendations to which the parties object.” Klamath Siskiyou Wildlands Ctr. v. U.S.
Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009). Such objections must be
“specific.” Fed. R. Civ. P. 72(b)(2).
III.
Petitioner raises several objections to the R&R. (Doc. 85.) None have merit, so the
Court will overrule them and accept the R&R.
A.
Petitioner objects to the R&R’s conclusion that Ground 1A should be denied. (Doc.
85 at 3-15.) Ground 1A of the Petition asserts that Petitioner was not given a full and fair
opportunity to litigate his suppression claim under the Fourth Amendment. (Doc. 1 at
14-15.) The R&R concluded that Ground 1A is procedurally defaulted because Petitioner
was given an opportunity for “full and fair” litigation of his Fourth Amendment claim.
(Doc. 78 at 15.)
Petitioner 	argues 	that 	Stone 	v. 	Powell, 	428 	U.S. 	465 	(1976) 	does 	not 	bar
consideration of his suppression claim in these habeas proceedings. (Id. at 7-15.) Stone
provides that “where the State has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, the Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” 428 U.S. at 482.
Petitioner first contends he did not have a full opportunity to litigate his suppression
claim because the state court did not hold an evidentiary hearing. (Doc. 85 at 7-15.) The
absence of an evidentiary hearing is insufficient alone to demonstrate that there was no full
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and fair opportunity to litigate. See Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977); see
also O’Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977) (“Where, however, the
facts are undisputed, and there is nothing to be served by ordering a new evidentiary
hearing, the full and fair consideration requirement is satisfied.”). While Petitioner
repeatedly asserts that the state court did not use the correct “mechanism” to resolve the
purported factual dispute, Petitioner does not demonstrate the existence of a factual dispute
or material evidence that could be raised at an evidentiary hearing. (See Doc. 85 at 7-9.);
see also 28 U.S.C. § 2254(e)(2) (requiring, for an evidentiary hearing to be held, a “new
rule of constitutional law” or a “factual predicate that could not have been previously
discovered through the exercise of due diligence,” and the “facts underlying the claim
would be sufficient to establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the underlying
offense”). Petitioner has not shown that the state court’s failure to hold an evidentiary
hearing deprived Petitioner of the opportunity to litigate his claim.
Petitioner also alleges that Judge James B. Morse, Jr., the Arizona Court of Appeals
judge who wrote the opinion on Petitioner’s direct appeal, was an Assistant United States
Attorney that investigated the facts in this case. (Id. at 13-14.) But Petitioner provides no
evidence to support Judge Morse’s direct involvement in Petitioner’s case and discovery
is precluded on the topic. (See Doc. 44.)
Petitioner argues that the state misapplied State v. Gulbrandson, 184 Ariz. 46 (1995)
and Murray v. United States, 487 U.S. 533 (1988). (Doc. 85 at 3-7.) He also raises novel
theories as to why he should have prevailed on his claim. (See Doc. 85 at 7-14.) These
arguments do not address the R&R’s basis for denying Ground 1A—that Petitioner had the
opportunity to raise the basis for these arguments in state court. Because the R&R’s
conclusion as to procedural default is sufficient alone to bar Ground 1A, the Court need
not address the arguments that do not address procedural default. See Thomas, 474 U.S. at
149 (1985).
Petitioner’s objections to the R&R’s conclusion that Ground 1A is procedurally
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defaulted are overruled.
B.
Petitioner contends that Briggs v. Raines, 652 F.2d 862 (9th Cir. 1981) applies, thus
requiring “the district court to try to reconstruct from the state records the missing facts.”
(Doc. 85 at 22-23.) Petitioner requests to hold an evidentiary hearing based on this
argument. (Id. at 23.) Because Petitioner had not raised this argument to the magistrate
judge, the Court will not consider it. See United States v. Howell, 231 F.3d 615, 621-22
(9th Cir. 2000) (holding that a district court may decline to consider new allegations
presented for the first time in objections). This objection is overruled.
C.
The balance of Petitioner’s objections attempt to relitigate the merits of his Petition,
rather than address the R&R’s conclusion.
Petitioner does not address the R&R’s conclusion that Grounds 1B, 1C, and 2A are
procedurally defaulted. (See Doc. 78 at 45.) Instead, he seeks to relitigate the substance of
his Fourth Amendment claim. (Doc. 85.) Petitioner has therefore conceded that the R&R’s
determination as to the procedural default of Grounds 1B, 1C, and 2A is correct.
Petitioner’s objections do not challenge the conclusion that Petitioner’s ineffective
assistance of trial counsel (Ground 2B) is procedurally defaulted. Nor does Petitioner
engage with the R&R’s bases for its conclusion that Petitioner’s claim of ineffective
assistance of appellate counsel (Ground 2C) fails. As to these grounds, he does not
challenge the determination that Petitioner did not show that his appellate counsel was
ineffective for raising only a suppression claim and that Petitioner’s Brady claim is
meritless. (See Doc. 78 at 41-44.) Petitioner therefore concedes that the R&R’s conclusion
that Grounds 2B and 2C should be denied is correct.
Petitioner does not object to the R&R’s conclusion that Grounds 1D and 2D are not
barred by 28 U.S.C. § 2254(i), so the Court will adopt the R&R’s findings as to these
grounds.
Having overruled all of Petitioner’s objections to the R&R, the Court will accept
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and adopt the R&R’s recommendation to deny all grounds of the Petition (Doc. 1.).
IV.
IT IS THEREFORE ORDERED that Petitioner’s objections (Doc. 85) are
OVERRULED, and the Report and Recommendation (Doc. 78) is ACCEPTED and
ADOPTED.
IT IS FURTHER ORDERED that the following claims in Petitioner’s Petition for
Writ of Habeas Corpus (Doc. 1) are DISMISSED with prejudice:
1. 	Ground 1A (exclusion of apartment search) as not cognizable under Stone v.
Powell;
2. 	Grounds 1D and 2D (PCR counsel ineffectiveness) as not cognizable under
§ 2254(i);
3. 	Alternatively, 	Ground 	1A 	(exclusion 	of 	apartment 	search 	regarding
motivation) as procedurally defaulted;
4. 	Grounds 	1B 	(trial 	counsel 	ineffectiveness 	regarding 	Ground 	1A), 	1C
(appellate ineffectiveness regarding Ground 1A), and 2B (trial counsel
ineffectiveness regarding Brady) as procedurally defaulted;
5. 	Ground 2A (Brady) as procedurally barred on independent and adequate state
grounds.
IT IS FURTHER ORDERED that the remainder of the Petition (Doc. 1), including
Ground 2C (appellate ineffectiveness regarding Brady) is DENIED without prejudice.
IT IS FURTHER ORDERED that Petitioner’s request for the issuance of a
certificate of appealability is DENIED because jurists of reason would not find this Court’s
ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not
made a substantial showing of the denial of a constitutional right, see 28 U.S.C.
§ 2253(c)(2).
. . . .
. . . .
. . . .
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IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment and
terminate this case.
Dated this 12th day of June, 2026.
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